Marquez v. Rapid Harvest Co.

Decision Date22 September 1965
Docket NumberCA-CIV
Citation1 Ariz.App. 562,405 P.2d 814
PartiesJohn R. MARQUEZ, Appellant, v. RAPID HARVEST CO., a California corporation and Joe Macias, Appellees. * 24.
CourtArizona Court of Appeals

Hillock & Hillock, Tucson, Malcolm L. Hillock, Tucson, of counsel, for appellant.

Spaid, Fish, Briney & Duffield, Tucson, Richard C. Briney and Richard R. Fish, Tucson, of counsel, for appellees.


This is an appeal from a judgment in a personal injury action entered in favor of the defendant, Joe Macias. The defendant contended and the trial court held that the plaintiff's exclusive remedy was under the Workmen's Compensation Act since the defendant was a coemployee of the plaintiff.

While working for the J. W. Olberg Co. in a lettuce harvesting operation near Willcox, Arizona, the plaintiff was injured when struck by a truck driven by the defendant Macias, a coemployee. Olberg carried industrial insurance and the plaintiff applied for and received Workmen's Compensation benefits for his injuries.

The plaintiff assigned error to the trial court's holding that it did not have jurisdiction over the subject matter of the action since the defendant was a coemployee and plaintiff's exclusive remedy to recover for this injuries was under the Workmen's Compensation Act. Our Supreme Court's decision in S. H. Kress & Co. v. Superior Court of Maricopa County, 66 Ariz. 67, 182 P.2d 931 (1947), has influenced the Federal Circuit Court of Appeals (9th) to conclude that Arizona is among the states in which an employee may not sue his fellow employee, when there is Workmen's Compensation coverage. Taylor v. Hubbell, 188 F.2d 106, 109 (9th Cir. 1951). At least two other appellate courts have also made this assumption. Feitig v. Chalkley, 185 Va. 96, 38 S.E.2d 73 (1946); Allman v. Hanley, 302 F.2d 559 (5th Cir. 1962).

However, in Worthington v. Industrial Commission (on rehearing) 85 Ariz. 310, 316, 338 P.2d 363 (1959), our Supreme Court indicated that whether the Workmen's Compensation Act immunizes a fellow employee from suit is an 'unresolved question.' This being the last pronouncement of our Supreme Court upon this subject, we are not bound by Kress and will consider the question as one of first impression in this state.

We find that Workmen's Compensation laws in other jurisdictions provide, just as does the Arizona Act, that compensation under the Act shall be the exclusive remedy of an injured employee against the employer. Some appellate courts have extended to coemployees the umbrella of immunity provided employers by statute. See White v. Ponozzo, 77 Idaho 276, 291 P.2d 843 (1955) and cases cited therein at p. 845. Common laws rights and liabilities among coemployees are thereby abolished through judicial legerdemain merging the tortfeasor employee in the employer. The acts of the employee disappear as such and remain solely the acts of the employer. Concomitantly, the employee's liability vanishes.

However, our problem requires examination and analysis of our statutory enactments in the light of the constitutional mandate of Article 18 § 6 of the Arizona State Constitution, A.R.S. which provides:

'The right of action to recover damages for injuries shall never be abrogated, and the amount recovered shall not be subject to any statutory limitation.'

Our Workmen's Compensation Act, 1 A.R.S. § 23-901 et seq., does not immunize an employee from suit by fellow employees, unless such immunity is contained in §§ 23-1022 and/or 23-1023, which provide:

' § 23-1022. Compensation as exclusive remedy; exceptions

'A. The right to recover compensation pursuant to the provisions of this chapter for injuries sustained by an employee shall be the exclusive remedy against the employer, except as provided by §§ 23-906 and 23-964, and except where the injury is caused by the employer's wilful misconduct and the act causing the injury is the personal act of the employer himself, or if the employer is a partnership, on the part of one of the partners, or if a corporation, on the part of an elective officer thereof, and the act indicates a wilful disregard of the life, limb or bodily safety of employees, in which event the injured employee may, at his option, either claim compensation or maintain an action at law for damages.

'B. The term 'wilful misconduct' as employed in this section shall be construed to mean an act done knowingly and purposely with the direct object of injuring another.'

' § 23-1023. Liability of third person to injured employee; election of remedies

'A. If an employee entitled to compensation under this chapter is injured or killed by the negligence or wrong of another not in the same employ, such injured employee, or in event of death his dependents, shall elect whether to take compensation under this chapter or to pursue his remedy against such other person.

'B. If the election is to take compensation, the claim against such other person shall be assigned to the state for the benefit of the compensation fund, or to the person liable for the payment thereof. Such a claim assigned to the state may be prosecuted or compromised by the commission.

'C. If the election is to proceed against such other person, the compensation fund or person shall contribute only the deficiency between the amount actually collected and the compensation provided or estimated by the provisions of this chapter for such case. Compromise of any claim by the employee or his dependents at an amount less than the compensation provided for shall be made only with written approval of the commission, or of the person liable to pay the claim.'

Other than as contained above, there is no statutory provision for an election between compensation and common law remedies, nor any provisions for subrogation. Justice Struckmeyer, in his dissenting opinion in the first Worthington case noted:

'No election is required by statute to either sue or accept the benefits of the Workmen's Compensation Law where one employee is injured by a fellow employee.' Worthington v. Industrial Commission, 85 Ariz. 104, 107, 333 P.2d 277, 279 (1958).

We are cognizant of the fact that if such a cause of action remains, the employee may very well obtain workmen's compensation and in addition recover in litigation against a fellow employee, as generally there is no subrogation unless provided by statute. Larson, The Law of Workmen's Compensation, § 71.30 (the rule criticized). Our Supreme Court has said:

'* * * in absence of legislation there can be no subrogation of the employee's rights against a third party.' State ex rel. Industrial Commission v. Pressley, 74 Ariz. 412, 419, 250 P.2d 992, 996 (1952).

Our interpretation of the subject Act cannot be distorted by considerations of the possibility of increased litigation. This is a legislative problem and is immaterial to the question before us. The language of the Workmen's Compensation Act is plain--it deals with liability to injured employees in connection with (a) an employer or (b) third person, 'not in the same employ.' It is a cardinal principle that courts must observe the obvious import of the language used in a statute where such is plain and does not lead to an impossibility, and the plain meaning may not be extended though the result may be harsh. Ernst v. Collins, 81 Ariz. 178, 182, 302 P.2d 941 (1956). We must read the Act in the light of the Constitution and adopt the construction which harmonizes with constitutional provisions. Roberts v. Spray, 71 Ariz. 60, 70, 223 P.2d 808 (1950); Goodyear Aircraft Corp. v. Industrial Commission, 62 Ariz. 398, 407, 158 P.2d 511 (1945).

Protection of the rights of individuals is the bedrock of our nation and we cannot judicially emasculate from the Constitution common law rights preserved therein. It is our absolute duty to protect constitutional rights. Bristor v. Cheatham, 75 Ariz. 227, 234, 255 P.2d 173 (1953). In recognition of this duty, we are convinced that the constitutional mandate of Article 18 § 6, supra, preserving common law rights and correlative duties in tort can be altered only through clear and unambiguous expression in the Constitution and implementing legislative enactments. Brady v. Roosevelt Steamship Co., 317 U.S. 575, 63 S.Ct. 425, 87 L.Ed. 471 (1943); Marion v. United States, D.C., 214 F.Supp. 320, 323 (1963).

This principle was aptly stated in Allman v. Hanley, supra. In holding that the Federal Employees' Compensation Act did not abrograte the common law right of an employee to sue a coemployee, the Fifth Circuit Court of Appeals quoted from Robert C. Herd & Co. v. Krawill Machinery Corp., 359 U.S. 297, 79 S.Ct. 766, 3 L.Ed.2d 820 (1959), which quoted Brady v. Roosevelt Steamship Co., supra, as follows:

"We can only conclude that if Congress had intended to make such an inroad on the rights of claimants * * * it would have said so in unambiguous terms' and 'in the absence of a clear Congressional policy to that end, we cannot go so far." 302 F.2d at p. 564.

The same view is expressed in Gee v. Horvath, 169 Ohio.St. 14, 157 N.E.2d 354 (1959):

'If the protection of the present workmen's compensation law of this state is to be expanded to include fellow employees as well as employers, this is a question of legislative policy to be determined by the General Assembly or by constitutional amendment.' 157 N.E.2d at p. 357.

Application of the rule 'inclusio unius est exclusio alterius' to the Act's conspicuous silence regarding coemployees hints at legislative recognition of the constitutional limitation. In fact they seem to be strangers to the Act. There is no mention of rights, duties or procedures relating to coemployees, nor is there any provision for their contribution to the fund, thereby entitling them to insurance against liability under the Act. The benefits of the Compensation Act accrue to those who undertake its burdens. Schumacher v. Leslie, 360...

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